QUESTION ONE. 25 



The first clause of the Order-in-Council is as follows (United 

 States Case, p. 74) : 



No provisions, rules, or enactments which may be in force with re- 

 gard to the boarding and bringing into port of foreign fishing vessels 

 found in the waters of Newfoundland shall, within the limits pre- 

 scribed by the said Convention of 1818, apply to vessels in which 

 inhabitants of the United States of America resort to the waters of 

 Newfoundland for the purpose of exercising the liberty assured to 

 them by Article I. of the said Convention. 



This clause was directed against section 1 of the Newfoundland 

 statute of 1905 (British Case, App., p. 757). The modus vivendi of 

 1906 had provided that that clause should " not be regarded as 

 applying to the United States," and the Order-in-Council, in pur- 

 suance of the modus, so declared (British Case, App., p. 503). The 

 fact, therefore, that the Order-in-Council afforded relief to American 

 fishermen renders no support to the contention that the enactment 

 of 1819 did not authorise the adoption of fishing regulations ap- 

 plicable to American as well as to British fishermen. For if it be 

 true that the effect of the first clause of the Order-in-Council was 

 designed to prevent British subjects from interfering with American 

 fishermen, 



the interference which was being relieved against had been author- 

 ised by a Newfoundland statute to which His Majesty had 

 31 given assent. The position, therefore, is that by the New- 

 foundland statute the British interpretation of the treaty had 

 been upheld the right to regulate all fishermen in British waters 

 had been asserted and, in pursuance of a modus vivendi, the opera- 

 tion of the statute was cancelled. It is difficult to see in this any 

 admission of the validity of the United States contention. 



To understand the second clause of the Order-in-Council, it must 

 be remembered that Newfoundland had adopted legislation prohibit- 

 ing, except under special licence, any dealing with bait-fishes for the 

 purpose of exportation (50 Viet., c. 1; 51 Viet., c. 9; 52 Viet., c. 6; 

 Can. Stat. 1892, c. 129; 56 Viet., c. 6; British Case, App., pp. 711, 

 712, 713, 727, 730). Newfoundland had also passed a statute (5 Ed. 

 VII, c. 4; British Case, App., p. 757), under which foreign fishing 

 vessels were prohibited from purchasing bait-fishes within Newfound- 

 land waters; and section 3 of that statute had provided that (British 

 Case, App., p. 757) 



"In any prosecution under this Act, the presence on board any 

 foreign fishing vessel in any port of this Island, or within British 

 waters aforesaid, of any caplin, squid, or other bait fishes, of ice, 

 lines, seines, or other outfit or supplies for the fishery, shall be prima 

 facie evidence of the purchase of the said bait fishes and supplies and 

 outfits within such port or waters." 



92909 S. Doc. 870, 61-3, vol 7 3 



